Responsibilities. Enforcing Rights: The Victorian Charter of Human Rights and KIRSTY CHAMPION

Transcription

1 Enforcing Rights: The Victorian Charter of Human Rights and Responsibilities KIRSTY CHAMPION On the first of January 2007, the Charter of Human Rights and Responsibilities1 came into effect in Victoria.2 Notably, the Charter lacked certain enforcement mechanisms, such as the right to a personal cause of action upon breach and the right to claim damages. As a result, the Charter has been criticised3 on the grounds that is unenforceable and therefore ineffective. This article, however, will suggest that the Charter will be effective: in lieu of formal enforcement provisions, the Charter will be enforced by external mechanisms. These include: the creation of governmental convention, scrutiny by the public and media, and existing remedies in other areas of law. As a preliminary point, however, I shall outline how human rights are protected in Australia. This explanation will then be followed by a summary of the key elements of the Charter. The protection of human rights in Australia Countries around the world have adopted formal mechanisms to protect the human rights of their citizens. This protection is delivered in various forms, including constitutionally entrenched Bills of Rights (such as the United States Declaration of Independence) and legislative Acts (such as the United Kingdom s Human Rights Act).4 Australia remains as the only democratic nation in the world without a national Bill or Charter of Rights. 5 Instead, the human rights of Australians are protected by a combination of the common law, legislation (such as the Race Discrimination Act,)6 the Constitution and international law mechanisms.7 However, there is increasing support for the formal protection of human rights in Australia, particularly in the last decade. In 2004, the Legislative Assembly of the Australian Capital Territory passed the Human Rights ActA In 2005, the New Matilda group launched a national campaign for a Federal Bill of Rights, offering a possible draft Bill which resulted from community consultation. Additionally, in 2006 the Victorian Parliament passed the Charter of Human Rights and Responsibilities A ct. 33 Polemic 2007

2 The Charter of Rights and Responsibilities In 1985, the Victorian Parliament convened a Joint House Committee to report on the desirability of introducing some form of human rights protection in Victoria.9 However, the current Charter was not initiated until May 2004 when the Victorian Attorney-General10 issued a Justice Statement on the subject.11 A Human Rights Consultation Committee was then established. This Committee liaised with Victorians at a grass-roots level, ranging from community groups in Mildura, to Indigenous people in Warmambool, to the victims of crime in Melbourne The Committee then reported to the Victorian Parliament, recommending that a mechanisms. Specifically, the Charter does not provide a wronged individual with a right to pursue a personal cause of action. Additionally, the Charter expressly prohibits the awarding of damages once a breach has occurred. Individual causes of action Once a breach of the Charter has occurred, the individual suffering from that breach does not acquire a cause of action under the Charter. However, it should be noted that the individual is not precluded from pursuing legal remedies external to the Charter. This shall be discussed in due course. The Victorian Government always preferred to omit an individual complaints mechanism, as indicated by the Statement of Intent lodged during the consultative process.28 Furthermore, the Explanatory Memorandum accompanying the Charter emphasises that Parliament s intention that the Charter of Rights and Responsibilities be introduced. On the first of January 2007, the Charter ofhuman Rights and Responsibilities Act came into effect in Victoria13. Australia remains as the only democratic nation in the world without a national Bill or Charter of Rights. The Charter is an ordinary Act of Parliament and is therefore subject to repeal or amendment. In this respect, the Victorian Charter follows the dialogue model favoured in New Zealand, the United Kingdom and the ACT.15 This model was created in response to the concern that a constitutionally entrenched Bill of Rights would violate parliamentary sovereignty. The dialogue model aims to bring Parliament into dialogue with other branches of government, notably the courts,16 whilst preserving Parliament s ability to amend or repeal legislation. The Victorian Charter ofhuman Rights and Responsibilities protects a variety of civil and political rights which primarily derive from the International Covenant on Civil and Political Rights 17. Examples of the rights protected include: the right to life,18 freedom of movement19 and expression,20 cultural rights21 and rights in criminal proceedings.22 Secondary rights, such as rights to education, health, housing and other rights contained in the International Covenant on Social, Cultural and Economic Rights,23 are not protected.24 The Victorian Charter binds public authorities. Section 4 of the Charter provides that this includes: public officials,25 certain statutory entities,26 entities that have functions of a public nature,27 Victorian police, local Councils, Ministers and members of Parliamentary Committees. Missing enforcement mechanisms The Victorian Charter of Human Rights and Responsibilities has been criticised for omitting certain enforcement 34 Charter does not create any independent cause of action or any independent forms of relief.29 In lieu of formal legal remedies, the Charter expands the role of the Ombudsman.30 The Ombudsman has the power to enquire into or investigate whether any administrative action is incompatible with a human right set out in the Charter.31 Additionally, the Charter requires the re-named Victorian Human Rights and Equal Opportunity Commission to prepare an annual report, give advice to the Attorney-General, and provide education about the Charter and human rights.32 The advisory and preventative nature of these mechanisms is commendable. However, these remedies are inadequate substitutes for a grant of an individual legal cause of action upon breach. A major element of this inadequacy is that the Victorian Government33 is in no way directly accountable for violations of the Charter. Damages From the outset, the Victorian Government objected to the provision of monetary remedies, fearing increased litigation and an obligation on the Government to pay damages 34. As a result, Section 39(3) of the Charter expressly provides that a person is not entitled to be awarded any damages because of a breach of this Charter. This explicit statement prevents courts from inferring a right to damages, as has occurred in New Zealand. In Baigents Case,35 the High Court of New Zealand found the Crown directly liable for a contravention of the Bill of Rights Act36 and awarded damages. How the Charter enforces human rights In lieu of the above remedies, the Victorian Charter protects

3 human rights through a number of other enforcement mechanisms. For the purpose of this article, I shall focus on (a) declarations of inconsistent interpretation and (b) unlawful government acts. I shall demonstrate that these mechanisms are primarily enforced through mechanisms external to the Charter. These include: the creation of governmental convention, scrutiny by the public and media and existing remedies (in administrative law and regarding general rules of evidence). Furthermore, I shall argue that these external influences will likely be successful in ensuring governmental compliance with the Charter. As such, I contend that the Charter of Human Rights and Responsibilities will effectively protect the human rights of Victorians. (a) Declarations of Inconsistent Interpretation Section 32 of the Charter provides that all statutory provisions must be interpreted in a way that is compatible with human rights.37 If this is not possible, section 36 allows the Supreme Court to declare that the statute cannot be interpreted consistently with a human right 38. Once a declaration of inconsistent interpretation is made, the responsible Minister is required to prepare a written response within six months.39 There is some concern that these declarations of inconsistent interpretation will be devoid of any effect whatsoever.40 This results from the fact that a declaration has no impact on the validity, operation or enforcement of the statutory provision in respect of which the declaration was made.41 Furthermore, section 31(1) of the Charter provides for the making of a declaration which overrides the rights in the Charter and prevents a Declaration of Inconsistent Interpretation being made in respect of the law for five years.42 As such, the practical effect of a declaration is almost entirely dependent on the political will of the government of the day. Despite these weaknesses, I would argue that a declaration mechanism can effectively protect human rights. For example, in the United Kingdom the government (has) introduced legislation to address every incompatibility identified by the courts.43 Future Victorian declarations will receive similar treatment. There are two external influences that will encourage a positive response from the Victorian Government: 1 The creation of political conventions As stated above, the efficacy of a declaration of inconsistent interpretation is entirely dependent on the political will of the Victorian Government, resulting in criticism of the Charter on grounds of unenforceability.44 However, it is possible to manipulate political will. In time, political conventions (I use this term in the sense of tradition, and not in its treaty meaning) may develop surrounding declarations made by the Supreme Court.45 Specifically, a convention that involves a positive governmental response to a declaration, namely the repeal or amendment of the offending legislation. The creation of such a political convention is encouraged by the Charter itself. For example, section 31(4) provides that an override declaration shall only be made in exceptional circumstances.46 This guides the Victorian Government to avoid issuing override declarations during the Charter s early years. As such, a form of governmental precedent may be created, guiding future action. However, relying on political convention as an enforcement mechanism is subject to inherent difficulties. Firstly, influential political convention is only created after sustained positive responses by government. Only the passing of time will demonstrate whether the Victorian Government responds in this manner. However, as stated previously, there is supportive international precedent in the form of the Human Rights Act 1998 (UK). This UK Act is based upon the European Convention ofhuman Rights.47 However, the UK Act does not include Article 13 of the ECHR, which provides that everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority. 48 Despite the omission of this promise, the UK Parliament has addressed every declaration by introducing amending legislation49. This demonstrates how a government has acted in accordance with a declaration despite not being legally required to do so. Thus, in theory at least, the Victorian Government could behave likewise to give the Convention force and meaning. A second difficulty relates to the unwritten and traditional nature of political conventions. This results in a susceptibility to misinterpretation by governments or blatant disregard. For example, Constitutional convention requires the GovernorGeneral to only exercise the power of the monarch after consulting with the Prime Minister.50 This convention was broken by Sir John Kerr on the 11th of November 1975 when he dismissed Gough Whitlam. This example demonstrates that even well established political conventions may be disregarded despite public and media uproar. Additionally, the creation of political convention in Victoria will be hampered by the decidedly weak language of the Victorian Charter. The Victorian Act provides for mere declarations of inconsistent interpretation. Conversely, the comparative UK,51 New Zealand52 and ACT53 human rights legislation provides for declarations of incompatibility54. Whilst the practical effect of these Acts is identical, the Victorian reference to interpretation indicates a refusal to take responsibility for a statutory breach of human rights. As a result, George Williams has raised the concern that this weaker language may make it less difficult for parliament, after reviewing the declaration, to maintain its own contrary interpretation 55. Conversely, it has been suggested that a 35 Polemic 2007

4 declaration with more extreme consequences may be less likely to be made.56 For example, in Canada a declaration has the effect of making legislation extremely vulnerable to subsequent invalidation. However In New Zealand the judiciary has more limited powers of review, similar to those of the Victorian Supreme Court. As a result, there have been thirty-five declarations made in New Zealand, and zero in Canada.57 As such, the weaker Victorian phrasing may actually encourage the Supreme Court to make declarations of inconsistent interpretation. This may, in turn, result in greater protection of human rights in Victoria. However, this assumes that the Victorian Government responds satisfactorily, which has not occurred in New Zealand.58 with any legal remedy. As an alternative, section 39 permits the individual to pursue any relief or remedy 66 that may exist externally to the Charter. Examples of alternative relief include: the ability to seek judicial review, recourse under the rules of evidence and the right to seek an injunction. These forms of relief shall now be discussed in greater detail. Firstly, section 39(2) of the Charter expressly protects an individual s right to seek judicial review under the Administrative Law Act.67 As such, a wronged individual may be entitled to writs of certiorari, mandamus, prohibition or quo warranto or... a declaration of invalidity in respect of the decision.68 Whilst this remedy is broad, the breach at issue must constitute a decision 69 under the Administrative Law Act if a remedy is to be granted. 2. The influence of the media, lobby groups and the general public Political will and government action can also be manipulated by the media, lobby groups and the general public. Whilst difficult to quantify, the influence of the public on governmental action is well documented. For example, Christina Kitterman provides that the purpose of a declaration of incompatibility is to create public interest and put pressure on the government to change such law. 59 Similarly, Christopher Jenkins states that a declaration of incompatibility by a court will also bring attention to legislation that is in violation of the Convention and will no doubt motivate political action to amend the offending statute. 60 However, Australians have a low level of awareness regarding human rights protection, with Sixty-one percent of Australian voters think[ing] that Australia has a Charter or Bill or Rights that protects] their human rights.61 This ignorance limits the public s ability to enforce their rights, further limiting the potential effectiveness of the Charter as a whole. As such, a major benefit of the Charter is that it facilitates increased public awareness of human rights and their protection. This was instigated by the community consultation process and is continued by initiatives such as Human Rights Youth Workshops62 and plain-english explanatory publications.63 As a result, a culture of human rights will develop in the Victorian community64. Furthermore, this human rights education will encourage the Victorian public to scrutinise government action and place pressure on the Victorian government to act in accordance with the Charter. In this way, governmental compliance with the Charter is facilitated and encouraged by mechanisms external to the Charter. (b) Unlawful government acts Section 38 of the Charter provides that it is unlawful for a public authority to act in a way that is incompatible with a human right. 65 However, the Charter does not enforce this proclamation, failing to provide the wronged individual 36 Secondly, evidence of unlawful conduct may be excluded under section 5 of the Victorian Evidence Act70 on the grounds that it has been obtained improperly or illegally71. For example, under the Charter, is would be deemed unlawful for a police officer to fail to treat a detained person humanely.72 As such, any evidence collected through such treatment could be excluded. However, I submit that evidence resulting from violations of the Charter is generally excluded under the current law on the grounds that it operate[s] unfairly against the defendant.73 As such, it appears unlikely that this remedy will greatly extend upon the protections already enjoyed. Furthermore, this remedy applies only to criminal trials and therefore cannot be used to obtain a remedy for all violations of the Charter. Finally, section 39(2) protects an individual s right to to seek a declaration of unlawfulness and associated relief including an injunction 74 to prevent further unlawful acts. It has been suggested that in this way, the Charter confers a free-standing cause of action to complain of a human rights violation.75 However, the inherent drawback of obtaining an injunction is that it does not remedy past unlawful action. In conclusion, by pursuing these three mechanisms, a wronged individual is able to obtain relief or remedy 76 through means external to the Charter. The effectiveness of these external remedies will vary according to the circumstances (for example, a criminal trial) and the wishes of the wronged individual (for example, a wish to prevent future unlawful action). Conclusion When read alone, the Charter of Rights and Responsibilities is likely to be ineffective as it is not enforced by formal mechanisms such as a person cause of action or entitlement to damages upon breach. Despite this, the Charter of Rights and Responsibilities will likely be effective in protecting the human rights of Victorians. This is because the Charter is adequately enforced by extrinsic measures such as the creation of political convention, public and media pressure and external legal remedies.

5 Charter ofhuman Rights and Responsibilities Act 2006 (Vic), hereafter The Charter. With the exception of Divisions 3 and 4 of Part 3 which come into effect on 1 January (The Charter, s 2). For example, see Simon Evans & Carolyn Evans, Legal redress under the Victorian Charter of Human Rights and Responsibilities (2006) 17 Public Law Review 264 at 271. Human Rights Act 1998 (UK) George Williams, Victoria s Charter ofhuman Rights and Responsibilities, Senate Occasional Lecture, Parliament House, 7 July Race Discrimination Act 1975 (Cth). Other examples include the Sex Discrimination Act 1984 (Cth), the Disability Discrimination Act 1992 ( Cth) and the Age Discrimination Act 2004 (Cth). For example, the individual complaints mechanism contained in the Optional Protocol of the International Covenant of Civil and Political Rights For example see Toonen v. Australia, U.N. Doc CCPR/C/50/D/488/1992 (1994). Human Rights Act 2004 (ACT). David McGlone, Investigating a Bill of Rights for Victoria (2005) 29 Criminal Law Journal 169 at 171. The Hon. Robert Hulls, MP. George Williams, Victoria s Charter ofhuman Rights and Responsibilities, Senate Occasional Lecture, Parliament House, 7 July Ibid. With the exception of Divisions 3 and 4 of Part 3 which come into effect on 1 January (The Charter, s2). George Williams, Victoria s Charter ofhuman Rights and Responsibilities, Senate Occasional Lecture, Parliament House, 7 July This was also the intention of the Victorian Government, as expressed in Department of Justice (Victoria), Statement of Intent: "Human Rights in Victoria at p. 2. David McGlone, Investigating a Bill of Rights for Victoria (2005) 29 Criminal Law Journal 169 at 179. Explanatory Memorandum, Charter ofhuman Rights and Responsibilities Act 2006 (Vic) at 1. Charter ofhuman Rights and Responsibilities Act 2006 (Vic) s 9. Charter ofhuman Rights and Responsibilities Act 2006 (Vic) s 12. Charter ofhuman Rights and Responsibilities Act 2006 (Vic) s 15. Charter ofhuman Rights and Responsibilities Act 2006 (Vic) s 19. Charter ofhuman Rights and Responsibilities Act 2006 (Vic) s 25. International Covenant on Social, Cultural and Economic Rights, G.A. res. 2200A (XXI), U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force Jan. 3, Department of Justice (Victoria), Statement of Intent: Human Rights in Victoria' at 1 [publication, place of publication, or URL], Public officials are only bound when acting within the meaning of the Public Administration Act 2004 (Vic), Charter ofhuman Rights and Responsibilities Act 2006 (Vic) s 4(l)(a). The entity must have functions of a public nature, see Charter ofhuman Rights and Responsibilities Act 2006 (Vic) s 4(1 )(b). The entity is only bound when it exercising those public functions, see Charter ofhuman Rights and Responsibilities Act 2006 (Vic) s 4(1 )(c). The Government does not wish to create new individual causes of action based on human rights breaches, Department of Justice (Victoria), Statement of Intent: Human Rights in Victoria' at 1, reproduced in Human Rights Consultative Committee, Victoria, Human Rights Consultative Committee: Rights Responsibilities and Respect' (2005). Explanatory Memorandum, Charter ofhuman Rights and Responsibilities Act 2006 (Vic) at 29. Rose Bryant-Smith & Chris Hartigan & Afrooz Kaviani Johnson, Human Rights at Work: the Impact of the Charter ofhuman Rights and Responsibilities on the Victorian Public Sector (2007) 12 Employment Law Bulletin 93 at 95. Human Rights Law Resource Centre, Guide to the Victorian Charter of Rights and Responsibilities at 59, available online at < org.au/files/qtknlwgsmo/ch%205.pdf> accessed 18/4/ at 266. Or public authority responsible for the breach. 264 at 274. Simpson v Attorney-General (Baigent s case) [1994] 3 NZLR 667. Bill ofrights Act 1990 (NZ); Simpson v Attorney-General (Baigent s case) [1994] 3 NZLR 667, as stated in Dr. Petra Butler, Australian Bills of Rights: Lessons from New Zealand (Paper presented at the Australian Bills of Rights: the ACT and Beyond Conference, Australian National University, Canberra, 21 June 2006) at 4. Charter ofhuman Rights and Responsibilities Act 2006 (Vic) s 32. The Supreme Court can make such a declaration when (a) in a Supreme Court proceeding a question of law arises that relates to the application of this Charter or a question arises with respect to the interpretation of a statutory provision in accordance with this Charter; or (b) the Supreme Court has had a question referred to it under section 33; or (c) an appeal before the Court of Appeal relates to a question of a kind referred to in paragraph (a). Charter ofhuman Rights and Responsibilities Act 2006 (Vic) s 36(l)Charter, s 36(1), referred to in Simon Evans & Carolyn Evans, Legal redress under the Victorian Charter of Human Rights and Responsibilities (2006) 17 Public Law Review 264 at 270. Charter ofhuman Rights and Responsibilities Act 2006 (Vic) s 32, referred to in George Williams, "A Charter ofrights for Australia' (2007) at at 271. Charter ofhuman Rights and Responsibilities Act 2006 (Vic) s 36 (5)(a). George Williams, Victoria s Charter ofhuman Rights and Responsibilities, Senate Occasional Lecture, Parliament House, 7 July Current as of April 2005, see Simon Evans & Carolyn Evans, Legal redress under the Victorian Charter of Human Rights and Responsibilities (2006) 17 Public Law Review 264 fn 56. For example, Simon Evans & Carolyn Evans, Legal redress under the Victorian Charter of Human Rights and Responsibilities (2006) 17 Public Law Review 264 at 271. This idea is referred to briefly in Simon Evans & Carolyn Evans, Legal redress under the Victorian Charter of Human Rights and Responsibilities (2006) 17 Public Law Review 264 at Polemic 2007

6 Charter ofhuman Rights and Responsibilities Act 2006 (Vic) s 31 (4). Convention for the Protection ofhuman Rights and Fundamental Freedoms, Rome, 4.XI Convention for the Protection ofhuman Rights and Fundamental Freedoms, Rome, 4.XI.1950, Article 13, as referred to in: Castan Centre for Human Rights Law, Inquiry into a Bill of Rights for New South Wales, Executive Summary, available online at < edu.au/castancentre/publications/billofrights.html>, accessed 16/4/2007. Current as of April 2005, see Simon Evans & Carolyn Evans, Legal redress under the Victorian Charter of Human Rights and Responsibilities (2006) 17 Public Law Review 264 fn 56; see Declarations of incompatibility made under section 4 of the Human Rights Act 1998, available online at < accessed 16/4/2007. Oz Politics, The Dismissal (1975), available online at < accessed 16/4/2007. Human Rights Act 1998 (UK) s 4. New Zealand Bill ofrights Act 1990 (NZ) s 4. Human Rights Act 2004 (ACT) s at 271. George Williams, *A Charter ofrights for Australia' (2007) at 85. Janet Hiebert, Parliament and the Human Rights Act: Can the JCHR Help Facilitate a Culture of Rights?, International Journal of Constitutional Law, January 2006 at 10 -volume and issue number? Publisher? Place of publication?. Ibid. Ibid. Christina Kitterman, Note and Comment: The United Kingdom s Human Rights Act of 1998: Will the Parliament Relinquish its Sovereignty to Ensure Human Rights Protection in Domestic Courts? 7 International Law Students Association International Law Journal 583 at 592. Christopher Jenkins, The Institutional and Substantive Effects of the Human Rights Act in the United Kingdom, 24 Dalhousie Law Journal 218 at 224. Survey conducted across 1001 eligible Australia voters from all States and Territories. See Roy Morgan Research Survey prepared for Amnesty International Australia, Anti-Terrorism Legislation Community Survey', August 10, 2006, available online at < Anti-terror%20community%20survey%20report.pdf>, accessed 16/4/2007. Held by the Victoria Law Foundation and the Law Institute of Victoria for Law Week For example, Victroian Equal Opportunity and Human Rights Commission, uyour Rights to Rights: The Victorian Charter ofhuman Rights and Responsibilities: Frequently Asked Questions", 12/2/2007, available online at < charter/veo&hrc FAQ.pdf >, accessed 17/4/ at 265. Charter ofhuman Rights and Responsibilities Act 2006 (Vic) s 38. Charter ofhuman Rights and Responsibilities Act 2006 (Vic) s 39. Administrative Law Act 1978 (Vic). Administrative Law Act 1978 (Vic) s 7. Decision is defines as a decision operating in law to determine a question affecting the rights of any person or to grant, deny, terminate, suspend or alter a privilege or licence and includes a refusal or failure to perform a duty or to exercise a power to make such a decision, see Administrative Law Act 1978 (Vic) s 2. Evidence Act 1958 (Vic) Evidence Act 1958 (Vic) s 5, example from Example from Simon Evans & Carolyn Evans, Legal redress under the Victorian Charter of Human Rights and Responsibilities, (2006), 17 Public Law Review 264 at 271. Charter ofhuman Rights and Responsibilities Act 2006 (Vic) s 22. Evidence Act\95S (Vic) s 5. Charter ofhuman Rights and Responsibilities Act 2006 (Vic) s 39(2). Dr Simon Evans, The Victorian Charter of Human Rights and Responsibilities and the ACT Human Rights Act: Four Key Differences and their Implications for Victoria, (Paper presented at the Conference entitled Australian Bills of Rights: The ACT and Beyond Conference, Australian National University, Canberra, 21 June 2006) at Charter ofhuman Rights and Responsibilities Act 2006 (Vic) s 39. Public Law Review 264 at 271. Administrative Law Act 1978 (Vic). Administrative Law Act 1978 (Vic) s 7. Decision is defines as a decision operating in law to determine a question affecting the rights of any person or to grant, deny, terminate, suspend or alter a privilege or licence and includes a refusal or failure to perform a duty or to exercise a power to make such a decision, see Administrative Law Act 1978 (Vic) s 2. Evidence Act 1958 (Vic) Evidence Act 1958 (Vic) s 5, example from Example from Simon Evans & Carolyn Evans, Legal redress under the Victorian Charter of Human Rights and Responsibilities, (2006), 17 Public Law Review 264 at 271. Charter ofhuman Rights and Responsibilities Act 2006 (Vic) s 22. Evidence Act 1958 (Vic) s 5. Charter ofhuman Rights and Responsibilities Act 2006 (Vic) s 39(2). Dr Simon Evans, The Victorian Charter of Human Rights and Responsibilities and the ACT Human Rights Act: Four Key Differences and their Implications for Victoria, (Paper presented at the Conference entitled Australian Bills of Rights: The ACT and Beyond Conference, Australian National University, Canberra, 21 June 2006) at Charter ofhuman Rights and Responsibilities Act 2006 (Vic) s